After careful consideration of the relevant factors, we conclude that the facts and issues of this case do not suggest the need for referral to the FCC. At bottom, this case involves a suit to collect $ 124,064.84 allegedly owed MCI under its Tariff filed with the FCC. This case is not about technical or economic issues in the telecommunications industry, as Ameri-Tel argues. It is likewise not about the reasonableness of MCI's Tariff. Rather, it is a collection case requiring application of the filed-rate doctrine and construction of the terms of the MCI Tariff. Finally, there is no danger of this Court contradicting a prior application to the FCC in this case (since none was made) or issuing a ruling inconsistent with the FCC's overall regulatory scheme. For these reasons, we find that it would be inappropriate to refer any issues in this case to the FCC under the doctrine of primary jurisdiction.
MCI's Summary Judgment Motion4
As stated at the outset, we must grant summary judgment if the pleadings and supporting documents show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. This Court will not deviate from the established practice in this district of upholding Local Rules 12(m) and 12(n). Ameri-Tel did not file a response to MCI's statement of undisputed facts as required by Local Rule 12(n). In neglecting to do so, it admitted the properly supported facts contained in MCI's 12(m) statement. The question remains whether those admitted facts entitle MCI to summary judgment in its favor.
MCI correctly points out that, on June 16, 1993, this Court denied Ameri-Tel leave to amend its Answer to MCI's Second Amended Complaint. Furthermore, the Federal Rules of Civil Procedure require Ameri-Tel to plead affirmative defenses such as estoppel
and illegality in a response to a preceding pleading. See Fed. R. Civ. P. 8(c). Thus, we need not consider the affirmative defenses raised for the first time in Ameri-Tel's Response. See, e.g., Computer Network Corp. v. Compmail Systems, Inc., No. 84 C 6813, slip op. (N.D. Ill. July 10, 1985) (failure to plead affirmative defense until responding to summary judgment motion constitutes waiver of that defense). The Seventh Circuit has treated the failure to raise affirmative defenses in a responsive pleading as a waiver of those defenses. See, e.g., Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 235 (7th Cir. 1991); Pinto Trucking Serv., Inc. v. Motor Dispatch, Inc., 649 F.2d 530, 534 (7th Cir. 1981). In addition, we find that Ameri-Tel has waived any counterclaims, such as willful misconduct, by failing to file any counterclaim. We will not consider claims and defenses raised for the first time in a brief in response to a summary judgment motion.
The record is devoid of any facts to support Ameri-Tel's claim that MCI had any agreements with Illinois Bell to block calls. It also is undisputed that Ameri-Tel never spoke to MCI about entering into any agreement to block any type of call from Ameri-Tel's payphones. Illinois Bell has admitted that Ameri-Tel subscribed to a blocking service for International Direct Distance Dialed ("IDDD") calls. That service, however, was offered by Illinois Bell as part of its tariff and no evidence indicates that MCI provided such a service or was responsible for blocking such calls. Though it is not entirely clear, it appears that the charges sought by MCI involve operator-assisted calls, not direct-dialed calls.
Ameri-Tel alleges fraud in international operator-assisted calls made from its payphones. See Ameri-Tel's Response at 2. MCI also points out that the alleged fraud came from operator-assisted calls. Thus, even if Illinois Bell was supposed to block IDDD calls, this does not cover the calls for which MCI seeks payment from Ameri-Tel. If MCI does seek payment for IDDD calls, then Illinois Bell acknowledges those calls should have been blocked. Nonetheless, pursuant to its Tariff, MCI is entitled to recover since it is not bound by Illinois Bell's tariff. Illinois Bell's liability to Ameri-Tel is the subject of a claim filed by Ameri-Tel that is not the subject of this motion.
MCI's Tariff and the Filed Rate Doctrine
Ameri-Tel admits that MCI Tariff F.C.C. No. 1 governs the liabilities of the parties. As noted above, the filed rate doctrine governs MCI's right to collect from Ameri-Tel for the unpaid service under the Tariff. Recently, this same Tariff was deemed controlling in another case heard in this district where the non-movant failed to file a 12(n) statement in response to MCI's motion for summary judgment. MCI Telecommunications, Inc. v. Premium Mktg. Sys., No. 91 C 4048, 1992 U.S. Dist. LEXIS 304, at *4 (N.D. Ill. Jan. 15, 1992). We find no reason to consider this same critical failure by Ameri-Tel any differently.
The Supreme Court has upheld the filed rate doctrine
as a bar to all equitable defenses against liability for charges incurred under properly filed tariffs. Such defenses include the estoppel and illegality defenses raised by Ameri-Tel in this case. See, e.g., Reiter v. Cooper, 122 L. Ed. 2d 604, 113 S. Ct. 1213, 1219 (1993); Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 120-21, 111 L. Ed. 2d 94, 110 S. Ct. 2759 (1990); Southern Pac. Transp. Co. v. Commercial Metals, Inc., 456 U.S. 336, 352, 72 L. Ed. 2d 114, 102 S. Ct. 1815 (1982). The Seventh Circuit has also upheld the filed rate doctrine as a strict bar to equitable defenses. See, e.g., Western Transp. Co. v. Wilson & Co., 682 F.2d 1227, 1229 (7th Cir. 1982). The filed rate doctrine is contained in the very language of the Act: "no carrier shall . . . collect, or receive . . . less or different compensation . . . than the charges specified in the schedule." 47 U.S.C. § 203(c).
We first will set out the relevant Tariff language and then will examine the language of the Tariff in light of the filed rate doctrine. MCI's Tariff, F.C.C. No. 1, specifies that:
The customer is responsible for payment of all charges for services furnished to the customer or its joint or authorized users. This responsibility is not changed by virtue of any use, misuse, or abuse of the customer's service, which use, misuse, or abuse may be occasioned by third parties, including without limitation, the customer's employees or other members of the public.
Tariff § B-7.01. The Tariff, § A, defines "customer," in pertinent part, as follows:
The person, firm, corporation or other entity which orders service . . . and which is responsible for the payment of charges and for compliance with MCI tariff regulations.